DeGroot v. Security National Insurance Company, 2021 CanLII 104413

RECONSIDERATION DECISION

Citation: DeGroot v. Security National Insurance Company, 2021 ONLAT 20-005980/AABS - R

Before: Adjudicator Robert Watt

Date of Order: 10/21/2021

Tribunal File Number: 20-005980/AABS

Case Name: Byrnell DeGroot vs. Security National Insurance Company

Written Submissions by:

For the Applicant: Gus Triantafillopoulos, Counsel

For the Respondent: Joseph P. Hogan, Counsel

OVERVIEW

1This request for reconsideration was filed by the Applicant in this matter.

2It arises out of a decision in which the Tribunal found that the applicant was not entitled to any Income Replacement Benefit (IRB) after October 6, 2020, until an amount had been calculated.

3The issues that were before the Tribunal were: what amount of IRB was the applicant entitled to from November 19, 2017, and to what date; interest and an award.

4The Tribunal found an IRB was payable in the amount set out in the Lynch & Associates report until October 6, 2020 and thereafter once the amount had been calculated.

5The Applicant submits that the Tribunal:

1. Erred in law by awarding an IRB in the amount of $161.44 for the time period of November 12, 2019 to October 6, 2020.
2. Erred in law when the Tribunal determine that the quantum of IRB owed could only be ordered up to October 6, 2020 in the amount of $161.44.
3. Erred in law by not granting an award against the Respondent.

6The Applicant is seeking an order:

a. Varying the Tribunal’s decision

RESULT

7The Applicant's request for a reconsideration is dismissed.

ANALYSIS

8The grounds for a request for reconsideration to be allowed are contained in Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure. A request for reconsideration will not be granted unless one or more of the following criteria are met:

a. The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness; b. The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; c. The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or d. There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it and would have affected the result.

9Reconsideration is only warranted in cases where an adjudicator has made a legal or evidentiary mistake, preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.

Did the Tribunal err in law when the Tribunal determined that the quantum of IRB owed could only be ordered up to October 6, 2020 in the amount of $161.44 weekly?

10The applicant argues that the amount of IRB should be the minimum of $185.00 per week and disputed his accountant’s calculations. The applicant’s argument is contrary to his own accountant’s calculations, taking into account section 7(3) of the Schedule, which the applicant has ignored.

11The Tribunal found the amount to be, as the applicant’s own accountant calculated the amount. The applicant’s accountant took into account sections 7(2)1(i) and 7(3)(b) of the Schedule and properly calculated the amount. I don’t agree with the applicant’s’ interpretation of section 7(3)(b) of the Schedule not applying, as this section has no limitations attached to it, and is therefore universal in its application.

12I find therefore that there was no error of law or fact made by the Tribunal.

Did the Tribunal err in law by not answering the issue in dispute namely “Is the applicant entitled to an income replacement benefit from November 19, 2017 to date and ongoing, and if so in what amount?

13The Tribunal, relying on the only evidence before it, being the applicant’s own expert report from Lynch & Associates, made a finding as to the amount set out in the report and a finding as to the date set out in the report. The IRB was to be paid to October 6, 2020, which was the date the applicant’s evidence supported and thereafter once the amount had been calculated. The issue was therefore addressed by the Tribunal.

14The respondent has paid the $400.00 per week from October 6, 2020 to date and continues to pay the IRB. The respondent however has reserved its right after receiving requested updated financial papers, to recover any overpayment if there is any, based on new evidence and calculations.

15I also agree with the respondent’s alternate position that the issue of what amount is owing after October 6, 2020, is moot as the respondent has been paying and continues to pay an IRB and has not stated that it won’t pay. What may be in dispute in the future would be the amount paid, which is always in dispute, depending on any employment. The courts have held when there is no live controversy which affects the rights of the parties, the case is said to be moot.¹ The courts have also stated that even if the issue is moot, the issue can still be heard, if there is an “adversarial content” which the parties have a direct interest or stake in the outcome. The adjudicator however must be aware of judicial economy. The “special circumstances of the case or issues of a recurring nature,” or of “public interest” may make it worthwhile to apply scarce judicial resources, to resolve a matter. The adjudicator must also be sensitive to pronouncing judgements in the absence of a dispute, affecting the rights of parties, which may be viewed as intruding into the role of the legislative branch.

16I find that that there is no issue (nonpayment) at the present time and therefore no “adversarial content” on any issue. The respondent is obligated to adjust any claim, as long as its file remains an open file. I find that there is no public interest to resolve an issue which doesn’t occur now but may down the road. I find that there was no error of law or fact made by the Tribunal.

AWARD

17The applicant claims that an award should have been made against the respondent because the respondent’s request for more documents was excessive and not reasonably required in order to calculate the quantum of IRB and this resulted in an unreasonable delay of payment of the IRB.

18It is settled law that an adjudicator should review all evidence put before him or her but does not need to refer to every piece of evidence in rendering a decision.²

19An award under Regulation 664 is a highly discretionary determination. It is only awarded if a Tribunal finds that an insurer has unreasonably withheld or delayed payments. A party must show that a factual or legal error was committed in not granting an award. It is not enough for a party to disagree with a finding.³ Reweighing the evidence is not the task on a request for reconsideration.⁴

20I find that there was no error in law or fact made by the Tribunal, that would justify granting an award.

CONCLUSION

21For the reasons noted above, I deny the Applicant's request for reconsideration.

Robert Watt Adjudicator Tribunals Ontario - Safety, Licensing Appeals and Standards Division

Footnotes

1. 1Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC)
2. 2A.G. v. Aviva General Insurance Company, 2020 CanLII 58835 (ON LAT) at paras. 15-17 and M.K. v. Aviva General Insurance Company, 2020 CanLII 30403 (ON LAT) at paras. 29-30; Clifford v. Ontario (Attorney General), 2009 ONCA 670 at para. 29.
3. 3G.R. v Aviva General Insurance Company, 2020 CanLII 69626 (ON LAT) at para. 19.
4. 416-000929 v. TD Home and Auto Insurance Company, 2017 CanLII 69239 (ON LAT) at para.19.